The rules of criminal procedure provide that any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion.193 Defenses and objections based on defects in the institution of the prosecution or on defects in the indictment or information (other than failure to show jurisdiction in the court or to charge an offense, which objections must be noticed by the court at any point during the pendency of the proceeding) must be raised prior to trial.194 Further, a defendant must raise any motions to suppress evidence, to compel discovery or to sever charges or defendants prior to trial.195 Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, at the time set by the court or prior to any extension thereof made by the court, is deemed to be a waiver of such defense, objection or right to request, although the court for cause shown may grant relief from the waiver.196
In the Superior Court and the Court of Common Pleas, at the time of the arraignment or as soon thereafter as is practicable, the court may set a time for the making of pre-trial motions or requests and, if required, also set a date for any hearings required in connection with such motions.197 In other courts, motions must be filed within a certain number of days after arraignment: five days for the Alderman and Mayor Court and ten days for the Family Court, although these times are subject to extension by the court.198
A motion made before trial must be determined before trial unless the court, for good cause, orders that it be deferred for determination at the trial of the general issue or until after the verdict, but no such determination may be deferred if the party’s right to appeal is adversely affected. Where factual issues are involved, the court must state its essential findings on the record.199
If the court grants a motion based upon a defect in the institution or prosecution or in the indictment or information, the court may also order that the defendant be continued in custody or that bail be continued for a specified time pending the filing of a new indictment or information.200
193. Super. Ct. Cr. R. 12(b); Comm. Pls. Ct. Cr. R. 12(b); Farn. Ct. Cr. R. 12(b); J.P. Ct. Cr. R. 10(b); Ald. & M. Ct. R. 9(b).
194. Super. Ct. Cr. R. 12(b); Comm. Pls. Ct. Cr. R. 12(b); Fam. Ct. Cr. R. 12(b).
195. Super. Ct. Cr. R. 12(f); Comm Pls. Ct. Cr. R. 12(f); Fam. Ct. Cr. R. 12(b)(2).
196. Super. Ct. Cr. R. 12(1); Comm. Pls. Ct. Cr. R. 12(b)(2) Fam. Ct. Cr. R. 12(b)(2).
197. Super. Ct. Cr. R. 12(c); Comm. Pls. Ct. Cr. R. 12(c).
198. Fam. Ct. Cr. R. 12(b)(3); Ald. & M. Ct. 9(b).
199. Super. Ct. Cr. R. 12(e); Comm. Pls. Ct. Cr. R. 12(e); Fam. Ct. Cr. R. 12(b)(4); J.P. Ct. Cr. R. 10(b); Ald. & M. Ct. R. 9(b).
200. Super. Ct. Cr. R. 12(h); Comm. Pls. Ct. Cr. R. 12(h).
© 2010 David L. Finger